As I noted last week, there has been talk that President Obama might need to resort to a recess appointment if he ever wants to fill the position at the head of the new Consumer Financial Protection Bureau with Richard Cordray, and that since the Republicans might seek to keep the Senate in pro-forma session forever (something that the Democrats, by the way, also did during the Bush Administration), Obama might have to copy Teddy Roosevelt, who appointed a number of officers in what he called the “constructive” recess between the two sessions of Congress, a recess that lasted exactly zero seconds. Today, there’s more discussion of this option at The New Republic’s website. In light of this brewing odd clauses controversy, I thought I’d relate the editorial that the New York Times ran on December 8, 1903, right after TR made his controversial move. The short piece is called “The Infinitesimal Recess”:

The fact that Secretary Root has advised the President that he may make the nominations of Gen. Wood and the rest of the army officers in the inappreciable space of time assigned to exist between the end of the extra session and the beginning of the regular session, disposes one to await the reasoning by which such advice is sustained before condemning it. But on the face of the provisions of the Constitution it appears preposterous.

The Constitution says that Congress “shall meet at least once in every year.” That is the regular session. The President may “on extraordinary occasions convene both houses, or either of them.” That is the kind of session that began on the 9th of November. “Neither house during the session of Congress shall, without the consent of the other, adjourn for more than three days.” No such agreed adjournment was had, though it was eagerly sought by the Senate, and the extraordinary session expired because of the beginning of the regular session. The Senate sought an adjournment expressly to secure a recess in which nominations might be made, which under the Constitution, would “expire at the end of their next session.” They did not get the adjournment, and it is not easy to see how they got the recess. Undoubtedly the situation created by the failure of the Senate either to get an adjournment or to do its business is embarrassing, but it does not seem half so embarrassing as the assumption by the President that Congress is not in session when actually it is. The probability is that Mr. Root interprets Article II, Section 2, Paragraph 3, of the Constitution as referring to a recess of the Senate only; but there was no recess, even of the Senate alone, in the sense that the term is ordinarily used.

Here at Odd Clauses Watch, I promise that me and my crack staff will be keeping a sharp eye out for all developments on this ongoing story.

With Republicans promising to filibuster the confirmation vote of Richard Cordray to head the newly-formed CFPB, speculation is rising about whether Obama might use the holiday recess to appoint him without Senate confirmation. Republicans might try to keep the Senate in at least pro-forma session to prevent such a move, but with the first session of Congress coming to an official close this winter, Obama might make a claim like Teddy Roosevelt did in 1903 that there has to be a “constructive” split-second recess in between the two sessions of Congress during which he can make a recess appointment. More about this historical event in Chapter Three of The Odd Clausesand about how the issue might resurface soon here, in this piece on Daily Kos.

More on this developing story here in Huff Po and in the Nation. Looks like we might have a big odd clauses controversy coming up in the next month!

One of my favorite constitutional provisions that I talk about in my book The Odd Clausesis the so-called Original Jurisdiction Clause of Article III, which says that “In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” Usually (by which I mean almost always, maybe 99% of the time), the Supreme Court hears cases under its appellate jurisdiction, which means that it hears a case that has already been heard by lower courts, and its role consists of reviewing the decisions of those courts. But when the Supreme Court exercises its original jurisdiction, it is the first and only court to hear the case. This is very strange, because the Supreme Court is not set up, as is a trial court, to hear evidence and witnesses and make factual determinations and the like; usually all it does is decide pure legal issues.

Although the Constitution provides for a few different kinds of cases that the Court can hear in its original jurisdiction, Congress has provided by statute that almost all of these kinds of cases can also be heard by the federal trial courts. As a result, even almost all of the cases that would fall under the Court’s original jurisdiction end up being heard in the first instance by a lower court. As it turns out, then, pretty much the only cases that the Supreme Court ever considers in its original jurisdiction are cases in which one state sues another state (or states). For these state vs. state cases, the Supreme Court is the only court that has the objectivity necessary to provide for a fair hearing to both states. If Nebraska were to sue Iowa, for instance, over where their border should be drawn, where else would it sue? It wouldn’t want to sue in Iowa. And Iowa wouldn’t want it to be able to sue in Nebraska. The framers understood this problem, and so they gave the Supreme Court original jurisdiction over these difficult cases to prevent interstate conflict and even war, which at least at the time of the founding, was by no means an impossibility.

Most original jurisdiction cases involve some type of border or water rights dispute. Some involve tax issues of some sort of another. A few involve interstate pollution issues, like when Missouri sued Illinois at the turn of the 20th century, claiming that Illinois’ decision to reverse the flow of the Chicago River had spread disease downstream to St. Louis (Missouri lost). The most famous recent original jurisdiction case involved New York and New Jersey arguing over who owns Ellis Island. The Court, much to the dismay of many New Yorkers, held for New Jersey.

Although the Supreme Court could, if it wished, hold actual trials in these cases, in which presumably the justices would decide as a group on the thousand nitty gritty issues of evidence and whatnot that come up during your average trial, it almost never does this (I think maybe it’s done it three times in its history). Instead it appoints somebody called a “Special Master” to sort through the evidence, hold a trial, and issue a report that makes recommendations about what the Court should do. The Court then reviews those recommendations and decides whether to adopt them. Special Masters are generally chosen from the elite bar. I, for example, am unlikely to be appointed as a Special Master. 😦

In my book, I explain that I love these State vs. State cases in part because their names (Oklahoma v. Texas, Arizona v. California, etc.) sound like college football games. I also mention that while writing the book I had considered analyzing all these cases and reporting on the win-loss records of all the states, to see which states have fared the best and the worst in these interstate disputes. Also in the book I mention that I did not have time to actually do this because I have a “family” and because my editor was a real stickler with her deadlines, etc. etc.

I am happy now to announce, however, that over this past summer, my crack team and I (by which I mean my very smart and conscientious research assistant Dave Hatton, working under my haphazard and oft-distracted supervision) completed this important, shall I say pathbreaking research (yes, I shall), by looking at every original jurisdiction state versus state case decided since 1900 (we had to leave some further research to those who follow in my scholarly footsteps) and coming up with the win-loss records of each state. Now, I should make a couple of disclaimers before reporting on the data. For one thing, some of these cases are hard to call, and reasonable minds may differ as to who won and who lost. We simply made the best judgment we could. For another thing, I explicitly told Dave that his other tasks were more important and that he shouldn’t knock himself out analyzing the cases, and that if he missed something or otherwise got sick of trying to get to the bottom of something, he should just make a decision and get on with it because, let’s face it, none of this makes any difference.

Anyway, without any further ado, I present the following two lists–the first is an alphabetical list of all the states with their win-loss records, and the second is a list of all states judged to have participated in five or more cases, in order of their winning percentages. As you’ll see, the big winners here are Minnesota and Michigan. The states that have fared the worst are Tennessee and Louisiana. Here is the first list:

Alabama 1-2

Alaska no cases

Arizona 2-6

Arkansas 1-5

California 6-3

Colorado 8-9

Connecticut 0-1

Delaware 3-0

Florida 1-3

Georgia 0-1

Hawaii no cases

Idaho 2-1

Illinois 3-6

Indiana 1-1

Iowa 2-0

Kansas 4-4

Kentucky 2-4

Louisiana 2-7

Maine 0-1

Maryland 2-1

Massachusetts 3-2

Michigan 6-1

Minnesota 5-0

Mississippi 3-5

Missouri 2-4

Montana 1-2

Nebraska 4-2

Nevada 3-2

New Hampshire 1-1

New Jersey 3-3

New Mexico 7-3

New York 7-4

North Carolina 3-1

North Dakota 1-1

Ohio 4-1

Oklahoma 3-4

Oregon 1-1

Pennsylvania 5-3

Rhode Island 1-0

South Carolina 1-1

South Dakota 1-0

Tennessee 0-5

Texas 6-8

Utah 3-0

Vermont 1-2

Virginia 4-4

Washington 1-1

West Virgina 3-5

Wisconsin 5-2

Wyoming 7-5

And here is the second list:

Minnesota 5-0 (winning percentage 100%)

Michigan 6-1 (86%)

Ohio 4-1 (80%)

Wisconsin 5-2 (71%)

New Mexico 7-3 (70%)

California 6-3 (67%)

Nebraska 6-3 (67%)

New York 7-4 (64%)

Pennsylvania 5-3 (63%)

Massachusetts 3-2 (60%)

Nevada 3-2 (60%)

Wyoming 7-5 (58%)

Kansas 4-4 (50%)

New Jersey 3-3 (50%)

Virginia 4-4 (50%)

Colorado 8-9 (47%)

Oklahoma 3-4 (43%)

Texas 6-8 (43%)

Mississippi 3-5 (38%)

Washington 3-5 (38%)

Illinois 3-6 (33%)

Kentucky 2-4 (33%)

Missouri 2-4 (33%)

Arizona 2-6 (25%)

Arkansas 1-5 (17%)

Louisiana 2-7 (22%)

Tennessee 0-5 (0%)

There you have it, folks. The first ever, as far as I know, original jurisdiction standings. Of course, there’s a lot more to be done with this data, for those so inclined. Like, maybe breaking up the analysis into how well states do when they are plaintiffs as opposed to defendants, for example. Or devising a board game called State versus State where the goal is to successfully sue as many states as possible to increase your borders, access the most water, and get the m0st tax revenues. In any event, I’m happy to take questions on how I got these numbers if anyone cares, and I’m definitely happy to adjust the numbers if it turns out I mischaracterized a decision or missed a decision or whatever. Until then, enjoy.